Mr D

[motorman]

Hello all, can someone help me please, this is rather complex case but goes back to 2008.My business partner and myself took out a bank loan for our limited company business in early 2008 with a well known bank, we both signed at that time a joint and several guarantee.Later that year the company went into liquidation September.
In 2011 the bank came after me (not my business partner) for repayment of the loan under the guarantee.I imediatley disputed this and advised the bank, I requested a subject access notification and paid the statutory fee of £10 to the collection Agency for this to be implemented by the lender (bank) The agency totally inept used my statutory fee against the alleged debt, The Sarn never materialised contrary to the deadline of 42 days to respond.
In the meantime I had evidence that the bank was continuing to take standing order payments,unknown to anyone including the liquidators, myself and my then business partner, or the customers we used to deal with!and we had no access to this information which is the reason for the SARN.
The alleged debt has been reduced as a consequence of the above however, the alleged debt has been bought for pennies in the £ by a third party debt collection agency who are now pursuing to go to court later this month.they issued their statement earlier, and now with only a couple of weeks claim they madea mistake, and are trying to amend particulars of their original statement claiming thry used the wrong computer template.
I consulted the FOS and they sided with the third party collection agency,although voiced concerns as to the enforceabilty of the claim.
Did the bank breach the contract by continuing to take these payments in September 2008 to 2011 well after the liqidation was finalised.
I think that by taking these payments from September 2008 would be a breach and as such the debt should be statute barred, as, as far we were concerened the last payments made by the company were inSeptember 2008.
They have purchased this alleged debt under the laws of property act 1925, is there not a situation whereby purchasing this alleged debt is therfore extinguishing it ?
I have asked them to supply the actual deed of asignment and or the deed of tripartite novation, under Lord Denning ruling, Van Lynn Developments Ltd v Pelias Construction Ltd 1968 that request should have been complied with by the endof April 2015 as per Judges instructions, the claimant replied by saying my request was erroneus.
Their neew amended statement is unsigned, and only have a persons name with no information as to thestanding of this person or there position within the company? Which seems wrong to me and I am considering asking the Judge to strike out the claim based on the farcical situation this is.As With cgange in their claim so to would my defence need to change.
This Alleged claim by the way is still in dispute and has been since conception, proof of which has been sent to both the court and the claimant,are they commiting perjury as thsy can be proven to be lying.
Thanks to all who offer their views on this, names have been purposely not mentioned for obvious deaso s

[nemesis45]

Re: Mr D

Hi I think you are getting mired into some misinformation here.
1. A SAR goes to the original creditor not the debt collection agency
or a debt purchaser who will have nothing but minimal data from the
date it acquired the debt.

2. My guess is whoever you sent the SAR to has treated as a "gift" an allocated it as a payment of £10.

3. AS to the amount the debt was sold for, that's confidential between the seller and the purchaser, also
the Deed of assignment will do you no good at all as the confidential data will be redacted completely
all you would see that a sale a sale and a purchase took place. The Denning ruling has fallen in to some
disrepute.

4. The rest of this i.e. the sale extinguishing the debt is founded on a totally misconceived idea put forward by
The Freemen on/of the land which has been condemned as worthless internationally and certainly has no
merit in the UK.

5. Your argument is rather muddled, a claimant can with the courts permission amend the Particulars of Claim and the defendant can likewise amend his defence.
6. This appears to be a claim arising from personal guarantee entered into by you and another thus the liability is joint and several but parties being liable for the full amount guaranteed.

7. I cannot see from your reasoning that the bank has breached anything, maybe details are missing. The terms of the guarantee may allude to this. I would have thought the liquidator (s) would have curtailed such payments.

8 . An allegation of perjury is very serious matter, and one must be 100% sure of ones grounds for such an allegation as there major consequences for a false allegation.

May I suggest that you put the facts in a logical chronological order ( with out the FOTL Deed part which will get you nowhere) .

I have tried to sort the " wheat from the chaff " here but it is all rather confused.

nem

[motorman]

Re: Mr D

Hi thanks for your reply, It was me that requested The Subject Access Request Notification SARN and paid The statutory fee to the then debt collection Agent Metropolitan of £10 as I wanted to know what was happening within the account this was some 2 years after the company went into liquidation and this was almost complete, I specifically wanted info From HSBC and stated that in my letter.
The fact that they may have breached the contract (HSBC) was mentioned during a quick free half an hour with a solicitor where I briefly explained to him what had happened. The liquidator was never made aware of these payments from customers and had no knowledge, although in my favour reducing the debt, cannot be morally and ethically right ( just my personal feelings on the matter)
The financial ombudsman service also felt that the alleged debt was unenforcable but would not elaborate further, I signed a joint and several guarantee with my then business partner, however they are not pursuing him ! Only me which I do not understand, although he lives in rented accomodation whereas I don't.
As stated the account has been in dispute since HSBC demanded payment and I have letters sent by recorded delivery and signed for to all agencies and HSBC stating that it was in dispute, the debt collection agency claim that they spoke to HSBC who stated that it was not in dispute, but I have the letters to the contrary, these were also sent to third party debt collection agency,So there have been blatant lies told ! And as the debt collection agency have made that statement I feel there are reasonable grounds to suggest perjury, I hope this gives you a better insight ino what has gone on.
thanks

[nemesis45]

Re: Mr D

The sorry state is you may consider a matter in dispute but the other party may consider there is not any valid dispute and issues a final response, one can then take a complaint to the FOS.

nem

[stevemLS]

Re: Mr D

I completely agree with nem (and well done nem for trying to identify the issue - it would have taken me a very long time to write post 2)

[motorman]

Re: Mr D

The whole scenario has been to the financial ombudsman service and they have sided with the third party debt collection agency, however, as stated they did observe that the alleged debt was unenforceable but would not elaborate as to why.

[jon1965]

Re: Mr D

They always say that they do not get involved with enforceability issues so to get them to say that is good

[nemesis45]

Re: Mr D

With a joint liability the creditor will assess the ability of each party to pay the debt, so the
party in rented accommodation have no equity in a property and/or no reasonable income
is not pursued.

An allegation of perjury is as said a major step and I would most sincerely advise seeking legal advice
from a specialist solicitor as there can be very serious consequences for both parties.

nem

[jon1965]

Re: Mr D

Surely a SAR to MCS should bring out all the details as they are of course the in house DCA of HSBC

[motorman]

Re: Mr D

I have advised them that I am in a bad position also as there is no equity in the property in fact it is negative equity,I have no assets no funds and am
Disabled and live on my pension only. I spoke with a solicitor for my free half an hour and explained everything to him including my circumstances.his reply was well don't worry they would be extremely stupid.foolish in fact to pursue this as they cannot get blood out of a stone. I have advised the debt collection agency of my circumstances , but they are still pursuing their claim spending Good money after bad.
To be fair I am not arsed, but feel the fact that the FOS state that it is unenforceable means something is not quite as it seems

[nemesis45]

Re: Mr D

I have advised them that I am in a bad position also as there is no equity in the property in fact it is negative equity,I have no assets no funds and am
Disabled and live on my pension only. I spoke with a solicitor for my free half an hour and explained everything to him including my circumstances.his reply was well don't worry they would be extremely stupid.foolish in fact to pursue this as they cannot get blood out of a stone. I have advised the debt collection agency of my circumstances , but they are still pursuing their claim spending Good money after bad.
To be fair I am not arsed, but feel the fact that the FOS state that it is unenforceable means something is not quite as it seems

It is incredibly crass of the DCA to continue to press for payment once they
have been advised fully on your health and finances.

Did you communicate with the " customer (dis) service " department over this, it may be useful to
write a Formal Letter to the MD/CEO of the DCA it is in my experience very much more successful than
stating at the bottom.

Unfortunately processes such as a Subject Access Request under DPA 1998 is not likely to produce much useful data as this is a "commercial" matter involving a Ltd. Company not a consumer credit matter, any matter that may identify any other party will be withheld.

nem

[motorman]

Re: Mr D

Well I have written to the CEO as you advised, thanks for that.
the complications are that although it was a limited company and yes it was commercial.The Joint and several guarantee seems to over ride the limited company aspect... Ie the over draught becomes payable with the loan.But they ain't gonna get nowt cos I got nowt to give them.. So even if they are successful in their claim,it is going to cost them and they are spending good money after bad...someone there is not wired up right.However this was all in 2008 it is now 2015 and I am retired and drawing my pension.

[FlamingParrot]

Re: Mr D

As stated the account has been in dispute since HSBC demanded payment and I have letters sent by recorded delivery and signed for to all agencies and HSBC stating that it was in dispute, the debt collection agency claim that they spoke to HSBC who stated that it was not in dispute, but I have the letters to the contrary, these were also sent to third party debt collection agency,So there have been blatant lies told ! And as the debt collection agency have made that statement I feel there are reasonable grounds to suggest perjury, I hope this gives you a better insight ino what has gone on.
thanks

What are your grounds for dispute?

The whole scenario has been to the financial ombudsman service and they have sided with the third party debt collection agency, however, as stated they did observe that the alleged debt was unenforceable but would not elaborate as to why.

Did the FOS actually say the debt was unenforceable? They don't usually get involved with that side of things and leave it to the courts to decide.

Well I have written to the CEO as you advised, thanks for that.
the complications are that although it was a limited company and yes it was commercial.The Joint and several guarantee seems to over ride the limited company aspect...

It's customary for banks to get around the limitation aspect of limited companies by demanding personal guarantees for business loans and overdrafts, often secured on the directors' property. When a company goes into liquidation, all other creditors (except employees who can be paid by the insolvency fund) basically get stuffed, however, the banks never lose.

Have they produced the deed of guarantee? I'd have thought it would be key in this case, much more so than the deed of assignment you requested, as guarantees have to be evidenced in writing.

Ie the over draught becomes payable with the loan.But they ain't gonna get nowt cos I got nowt to give them.. So even if they are successful in their claim,it is going to cost them and they are spending good money after bad...someone there is not wired up right.However this was all in 2008 it is now 2015 and I am retired and drawing my pension.

How much is the claim for? If it's been allocated to fast track rather than small claims (normally over £10k), there is a distinct possibility of costs awarded against the losing party -it's something to bear in mind if applicable. :mmph:

[motorman]

Re: Mr D

No they have produced a notice of assignment and also a copy of the joint and several guarantee, I have asked for details of the sale under the law of property act 1925 section 74.
To be fair it doesn't matter what costs they apply I have nowt and they can't get blood out of a stone.There is also no equity in the house Iive in.
I have explained all this in writing to them and yesterday wrote to the CEO explaining that I think their stance is incredibly crass based on my circumstances,I am a pensioner living on my own relying on my pension and a small private pension, I am not in good health and on heavy medication .
As the saying goes you can't get blood out of a stone.
Yes the FOS did state that they felt it was unenforceable but as I have stated they would not elaborate and because this classes as commercial I am u able to get any legal help free as I could if it were private.

[FlamingParrot]

Re: Mr D

It is true that even a court cannot order you to pay what you haven't got and an income and expenditure form would show that. It may not be worth their while pursuing a debtor without means to pay but legally they can still do it. There are lots of people out there with CCJs who only pay £1/month and that's all the court could order to be paid. It's a risk creditors have to take. :ohwell:

If they obtain judgment they can also apply for a charging order on your home, even if there's no equity at the moment, they could be banking on increasing property prices. Furthermore, having debts secured on property makes their own account portfolio look much better than having unsecured debts in their books, even with a judgment on them. You don't state the value of the claim or whether this is a small claim or a fast track one where they could obtain costs in their favour. A costs order can also be secured on property in the same way as a judgment, I know someone who is currently fighting a charging order over a costs order. :mmph:

The problem with not knowing why the FOS said it was unenforceable is that you can't use those arguments in court in your defence and ultimately it's down to a judge to decide whether it can be enforced or not. If they have produced the deed of guarantee, that would be enough to show your liability for the company's debt.